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State v. Chamberlain9/30/2005
red in rejecting his claim of impairment of contract because K.S.A. 8-1567(l)(1) and (3), which treat a diversion agreement as a conviction for life, destroyed his contractual right to a dismissal with prejudice of the 1986 DUI charge by redefining it as the equivalent to an adjudication of guilty. He contends that his rights under the 1986 diversion agreement have been "impaired to the point of obliteration" by K.S.A. 8-1567.
In its amicus brief, the Kansas Association of Criminal Defense Lawyers contends the Court of Appeals ignored the two leading Contract Clause cases, Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 57 L.Ed. 2d 727, 98 S.Ct. 2716 reh. denied 439 U.S. 886 (1978) and Home Bldg & L. Assn. v. Blaisdell, 290 U.S. 398, 78 L.Ed. 413, 54 S.Ct. 231 (1934), which confirm that the Contract Clause is a viable and real constitutional limitation on state legislatures, even in the exercise of police power. The amicus argues that all of the elements of the Bott test are met, primarily focusing upon the third prong of the test. However, the amicus fails to recognize that the Bott test, cited by the Court of Appeals, in this case specifically takes into account "the factors applied in Blaisdell and Spannaus as well as the overriding general principle that the reservation of the State's police power must be read into all contracts." Bott, 240 Kan. at 633-34 (citing Energy Reserves Group v. Kansas Power & Light, 459 U.S. 400, 411-12, 74 L.Ed. 2d 569, 103 S.Ct. 697 ).
Moreover, two recent Court of Appeals cases have recognized this limitation on the exercise of police power and still concluded that the 2001 amendment's inclusion of lifetime diversion agreements did not violate the Contract Clause because the defendants had not met the first prong of the test by demonstrating an obligation of the contract which had been impaired. See Shelinbarger, 33 Kan. App. 2d at 680; State v. Slimmer, 33 Kan. App. 2d 682, 685-86, 107 P.3d 1245, rev. denied 280 Kan. ___. These cases provide persuasive authority for the resolution of this case.
In both cases, the defendants' DUI diversions from the early 1990's were being used to enhance the penalty of a subsequent DUI conviction committed after K.S.A. 8-1567 was amended in 2001. Unlike this case, the diversion agreements included an express provision concerning their future use: "The defendant understands that even if this case is ultimately dismissed, this diversion counts for the next five years as a conviction under State and City law for sentencing purposes in any subsequent D.U.I. case . . . ." Shelinbarger, 33 Kan. App. 2d at 679, 681; Slimmer, 33 Kan. App. 2d at 683, 685-86.
In considering the first prong of the Bott test, the Shelinbarger court stated:
"'Before we can find impairment of a contract we must find an obligation of the contract which has been impaired.' Keefe v. Clark, 322 U.S. 393, 396, 88 L.Ed. 1346, 64 S.Ct. 1072 (1944). Therefore, we begin with an analysis of whether the City, in its 1991 diversion agreement with Shelinbarger, promised Shelinbarger immunity from future changes in state law.
"Where a contract is between a political subdivision of a state and a private individual, 'settled principles of construction require that the obligation alleged to have been impaired be clearly and unequivocally expressed.' 322 U.S. at 396-97. Moreover, ' or just as no person has a vested right in any general rule of law or policy of legislation entitling him to insist that it shall remain unchanged for his benefit [citations omitted], so an immunity from a change of the general rules of law will not ordinarily be implied as an unexpressed term of an express contract. [Citations o
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